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I recently speculated that the death of Justice Antonin Scalia might result in a 4-4 split in Friedrichs v. California, a case in which non-union public school teachers in California contended that they should not be required to pay “agency fees” to a union for its bargaining activity.

As expected, the Court split 4-4 in a one-line decision issued today, leaving in place a ruling from the U.S. Court of Appeals for the Ninth Circuit, which found in favor of the state and the unions. They argued that allowing the teachers to escape fees would let them be "free riders" and gain the benefits of the union bargaining activity without bearing any of the costs. (The state and the unions contended that the mandatory agency fees are used only for bargaining and related union activity that is not directly political or ideological.)

Based on the questioning at the Supreme Court oral argument, and the reputations and prior rulings of the members of the Court, commentators speculated before the death of Justice Scalia that the Ninth Circuit decision would be reversed 5-4, with Chief Justice Roberts, and Justices Alito, Kennedy, Scalia, and Thomas in the majority. Now, as a result of the Court’s 4-4 split, Friedrichs will be the rule in all Ninth Circuit states unless the Ninth Circuit itself overrules the decision or a majority of the Supreme Court rules to the contrary in another case involving the same issue.

Friedrichs may be the most important labor and employment case yet to be affected by the death of Justice Scalia. President Obama’s nominee to fill Justice Scalia’s seat, Merrick Garland, has a consistently pro-labor record during his time on the U.S. Court of Appeals for the District of Columbia Circuit.

In the wake of today’s “non-decision,” unions are expected to keep trying to require agency fees from employees of state and local governments, organized labor's biggest growth sector, while non-union employees who disagree with the political activity of unions are expected to continue challenging contract provisions that require them to pay union dues or agency fees. Given the publicity theFriedrichs case has generated and the widening political divisions across the country, we expect no shortage of plaintiffs ready to challenge forced agency fee payments.

Compare jurisdictions:Employment: USA

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